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Trust in a Time of Brexit

The fundamental issue with Clause 11 of the EU (Withdrawal) Bill, which allows the UK parliament and government to retain competence in areas of devolved responsibility, is one of trust, says Nicola McEwen.

One of the primary purposes of the EU (Withdrawal) Bill is to convert existing EU law into domestic law, by creating an ambiguous new category of ‘retained EU law’. This is intended to ensure continuity and certainty as the UK exits the EU. The devolution clauses – especially Clause 11 – are often presented in a similar way. As the Parliamentary Under Secretary of State at the Department for Exiting the European Union, Robin Walker, said in recent evidence to the Scottish Parliament’s Finance and Constitution Committee:

"We currently operate under common frameworks under EU law, and clause 11 ensures that there will be certainty and stability because those common frameworks will remain in place, except in the areas where we have agreed that they will not be required. That provides the certainty and stability that businesses and investors are looking for."

But Clause 11 is not needed to ensure certainty and stability on exit day. Other clauses in the bill ensure a functioning statute book on the day the UK leaves the EU. Clause 11 is about what comes next. It enables the UK parliament and the UK government, after Brexit, to retain authority in areas where devolved competence has intersected with EU competence. And it provides reassurance to the UK government that it can negotiate trade deals, including with the EU, without the need to secure the consent of the devolved legislatures. As Robin Walker went on to say:

"If the bill did not have the capability to provide, on those issues, a degree of common frameworks, we would not necessarily be able to achieve the market access that all parts of the United Kingdom want us to achieve for our future partnership."

But there are several problems with Clause 11, and several problems with the underlying assumptions that have motivated it.

First and foremost, Clause 11 cuts across the existing devolution settlements. UK government ministers, including the Under Secretary of State (though perhaps excluding the Secretary of State for Scotland), do not seem to get this. Certainly, the legislation that created the devolved institutions requires devolved laws to be compatible with EU law. UK law also has to be compatible with EU law. Those obligations are derived from the UK’s membership of the EU. They are not derived from the constitutional allocations of power within the UK, as set out in Schedule 5 of the Scotland Act 1998 or Schedule 7 of the Government of Wales Act 2006.

Notwithstanding any new treaty obligations that may accompany a new UK-EU trade deal, without Clause 11, Brexit would remove these obligations on the UK’s legislatures, leaving them free to pass laws in policy areas that have hitherto been governed by EU law, where these fall within their constitutional competence. In the case of the devolved legislatures, that includes agriculture, the environment and fishing, among others. In the case of the UK legislature, it includes these fields for England, and many more areas for the whole of the UK, related to trade, markets, mobility, competition and employment rights.

Indeed, as Prof Alan Page has pointed out, many more repatriated powers relate to matters that are reserved to the UK parliament in domestic law than relate to devolved matters. Consequently, Brexit is already set to alter the balance of power between the UK parliament and the devolved legislatures. By imposing a new constraint on the devolved legislatures to act compatibly retained EU law – over which the UK parliament will have control – Clause 11 renders the power imbalance even more acute.

Second, Clause 11 would make the operation of devolution much more complex, increasing the potential for legal dispute and clouding democratic accountability. The conferred powers model which underpinned the Welsh devolution settlement has meant that the National Assembly for Wales has long had to endure a complex and interdependent form of devolution. The Wales Act 2017 was supposed to herald a move to a clearer model of devolution similar to the Scottish reserved powers model.

But the restrictions that prevent all devolved legislatures from modifying retained EU law – coupled with the much-criticised ambiguity surrounding ‘retained EU law’ – will make it much more difficult for the devolved governments and the Presiding Officers to determine whether and when legislation is within or beyond devolved competence. It will also make it much more difficult for the electorate to determine which layer of government is responsible for policy successes and failures.

The UK government has been open to modifications to Clause 11, and the bill already includes an Order in Council process that could reduce its scope. As the DExEU Parliamentary Under Secretary of State acknowledged:

"It is quite possible for the scope of clause 11 to be substantially reduced through agreement between the governments, but it is important to recognise that we need to provide certainty that we can keep those frameworks in place."

For their part, the devolved governments have expressed willingness to negotiate new UK common frameworks so long as these are secured by agreement rather than by imposition from the centre. The intergovernmental Joint Ministerial Committee (EU Negotiations) agreed that common frameworks may be implemented in a variety of ways, including ‘by legislation, by executive action, by memorandums of understanding, or by other means depending on the context in which the framework is intended to operate’. However, so long as Clause 11 remains in place, it creates a new default position. It suggests that failure to reach intergovernmental agreement would result in continued constraints on devolved competence. That would leave the devolved governments with very little leverage when negotiating the form and content of common frameworks.

The problem with Clause 11 is fundamentally a problem of trust. The UK government doesn’t trust the devolved governments to refrain from using repatriated powers to create policy and regulatory divergence that may harm the UK’s single market and create problems in trade negotiations. This rather overlooks the considerable constitutional authority that the UK parliament already retains over market regulation, trade and the making and implementation of international treaties. For their part, the Scottish and Welsh governments don’t trust the commitment of the UK government to devolve repatriated powers after Brexit and/or to agree and govern UK common frameworks on a genuinely cooperative basis, hence their jointly prepared amendments suggesting (among other things) that Clause 11 be deleted from the bill.

A number of alternative suggestions have been made to resolve the impasse, including introducing a sunset to Clause 11, narrowing its scope to focus on the internal market or international obligations, or replacing it with extensions to reserved powers or, alternatively, a ‘standing still’ provision which could commit the governments to refraining from introducing barriers to trade and mobility. I find the latter the most persuasive, as it would allow powers to lie where the fall under the existing settlements, while securing the time needed to negotiate, agree and implement new frameworks.

Moreover, such a standing still provision would represent a symbolic gesture of trust. Any marriage, whether personal or political, relies upon a degree of mutual trust and understanding. Without trust, it’s unlikely to stand the test of time. As the partner with the most power and most of the constitutional cards in intra-UK negotiations, if not in its negotiations with the EU, a gesture of trust from the UK government toward the devolved institutions could go some way to stabilising the UK’s territorial constitution.

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